An Administrative Amnesty

The Department of Homeland Security’s immigration enforcement division was ordered last week to reduce their illegal immigrant detainee populations to 26 percent below the legally required level, according to a research organization that monitors immigration issues.

That reduction is significantly greater than those required by the impending budget cuts the department has cited for the release of the detainees.

The announcement of detainee releases on Tuesday set off a firestorm on Capitol Hill. The White House has tried to distance itself from the decision, which was closely followed by the public announcement of the departure of DHS’s top immigration enforcement and deportation official.

"As fiscal uncertainty remains over the continuing resolution and possible sequestration, ICE has reviewed its detained population to ensure detention levels stay within ICE’s current budget," ICE spokesperson Gillian Christensen said in a news release.

The law requires ICE to maintain an average of 34,000 illegal immigrant detainees in its detention facilities. However, Rep. Michael McCaul (R., Texas), chairman of the House Homeland Security Committee, said Wednesday that DHS reported fewer than 31,000 detainees as of last week, "in clear violation of the statute."

According to Jessica Vaughan, policy director for the Center for Immigration Studies, ICE was recently ordered to reduce its detainee populations even further.

"Last week, ICE field offices all over the country were ordered to reduce the number of detainees from 34,000 to 25,000 by March 1," Vaughan said in a post on the group’s website.

Gary Mead, the agency’s top enforcement and deportation official, announced his retirement to staff within hours of ICE’s announcement of detainee releases on Tuesday. ICE officials denied any connection between detainee releases and Mead’s departure.

White House Press Secretary Jay Carney was forced to distance the White House from ICE’s decision on Wednesday, saying the White House had not been made aware of the policy before it went into effect.

ICE has refused to say how many detainees would be released and did not respond to requests to confirm Vaughan’s statistics.

According to a Wednesday letter from McCaul to ICE chief John Morton, ICE’s low detainee population was in violation of federal law even before the additional reductions ordered last week.

McCaul said the decision to release more detainees even as DHS failed to satisfy its statutory detention requirements "reflects the lack of resource prioritization within the Department of Homeland Security and Immigration and Customs Enforcement and is indicative of the department’s weak stance on national security."

The congressman also expressed concerns that ICE did not consult Congress before deciding to release further detainees.

Homeland Security Secretary Janet Napolitano said the sequester cuts would eliminate funds needed to pay for the detention program.

However, the reported 26 percent reduction in detainee populations reportedly ordered by ICE is significantly greater than the 8.2 percent reduction in ICE’s budget required by the sequester.

A Senate aide noted the fiscal cliff deal rendered ICE's budget reduction even less than that: "New spending cuts and new taxes reduce the sequester by a corresponding amount. So a scheduled $109 billion sequester (8.2 percent) became an $85 billion sequester (5.3 percent)."

According to the White House Office of Management and Budget, DHS is slated to finish the year with more than $9 billion in unobligated funds.

Critics of ICE’s detainee release rejected the budget constraint explanation. Some suggested the administration was using detainee releases to accentuate the supposedly catastrophic effects of the sequester.

"The safety of the public is threatened and the rule of law discarded as a political tactic in this sequester battle," fumed Pinal County, Ariz., sheriff Paul Babeu in a news release.

Other critics similarly rejected DHS’s budgetary explanations but said the move was part of a larger policy to push an immigration policy that opposes strict enforcement.

McCaul said in a statement the administration was using the supposed budget constraints as "an excuse to achieve its desired goal of shifting money away from detentions and returning to a de facto catch-and-release policy."

Julie Kirchner, executive director of the Federation for American Immigration Reform, called the policy "administrative amnesty."

The detainee releases are a "culmination of a multi-year effort to release illegal immigrants rather than detain them," Kirchner said.

Kirchner pointed to a host of other actions taken by the administration with respect to immigration enforcement that she said signals a determination to undercut congressional intent with respect to the prosecution and deportation of illegal immigrants.

Those actions included a 2011 ICE memo that instructed enforcement officials to exercise "prosecutorial discretion" in enforcing laws against illegal immigration. Critics claimed the policy was an explicit attempt to circumvent congressional intent on the issue.

ICE also attempted to undercut efforts by the government of Arizona to enforce immigration laws by warning that it would not prosecute illegal immigrants arrested in the state. The Justice Department later sued Arizona in an attempt to enjoin the controversial state law.

The Supreme Court upheld parts of the measure and ruled that others aspects were preempted by federal law.

ICE has been up front about its determination to "prioritize" immigration enforcement and focus only on those it deems criminal threats. But critics say that the policy amounts to disregarding violations of immigration law for large swaths of illegal aliens.

The decision to release illegal immigrant detainees on Tuesday resurrected that concern among other lawmakers.

"It is clear the administration is using the sequester as a convenient excuse to bow to political pressure from the amnesty groups," Sen. Jeff Sessions (R., Ala.), a senior member of the Senate Judiciary Committee, said in a statement.

"With this new action, the administration has further demonstrated that it has no commitment to enforcing the law and cannot be trusted to deliver on any future promises of enforcement," Sessions said.

House Judiciary Committee member Rep. Bob Goodlatte (R., Va.) called ICE’s move "abhorrent" and said it is "needlessly endangering American lives" in a separate statement.

"Unfortunately, this administration has a poor record of enforcing our immigration laws and has routinely sought to undermine them," Goodlatte said.

Update, 9:05 AM Feb. 28: This article has been updated to better reflect the minuscule nature of the cuts to ICE's budget.

Lachlan MarkayEmail | Full Bio | RSSLachlan Markay is a staff writer for the Washington Free Beacon. He comes to the Beacon from the Heritage Foundation, where he was the conservative think tank's first investigative reporter. He graduated from Hamilton College in 2009, and currently lives in Washington, D.C. His Twitter handle is @lachlan. His email address is markay@freebeacon.com.